Articles Posted in Child Custody

Texas divorce cases are never easy, but can become even more complicated when one or both parents have mental health problems.  Mental health problems may, but do not necessarily, affect a parent’s competence to testify or participate in the proceedings.  Depending on the nature of the mental health problems, they may also affect the parent’s ability to care for the child.

In a recent case, a mother challenged a trial court’s order appointing the father as sole managing conservator.  According to the appeals court’s opinion, the husband filed for divorce when the child was just eight months old.  The trial court issued a temporary order appointing both parents temporary managing conservators.  The father was working in Las Vegas at the time and was granted possession on weekends when he was in San Antonio, with the mother having the child the rest of the time.  Both parents were ordered to participate in psychological evaluations.

The court limited the mother’s contact with the child to supervised visits after receiving the psychological evaluations.  The child was to live with his paternal grandmother in San Antonio, but granted the father possession when he was in San Antonio.

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It can be very difficult for a non-parent to get custody of a child in Texas custody cases.  A presumptive father may, however, have an advantage over other non-parents.  In a recent case, the appeals court found a presumptive father did not have to establish non-parent standing even though the court adjudicated someone else as the child’s father.

The biological father challenged the order appointing him, the child’s mother, and the mother’s former husband joint managing conservators with the stepfather having the right to establish the child’s residence. The biological father had intervened in the divorce proceeding between the mother and her husband. Although the trial court adjudicated him as the child’s father, it gave custody to the stepfather, who also got custody of his own two children.

The father questioned the stepfather’s standing under Section 102.004 of the Texas Family Code, which provides that a grandparent or other person may not file an original suit for conservatorship, but may intervene in a pending suit if there is proof appointment of a parent or the parents as managing conservator(s) “would significantly impair the child’s physical health or emotional development.”

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Most Texas custody cases are between a child’s parents, but in some cases other family members may be involved.  In a recent case, an uncle challenged a modification of the access and possession terms of a court order related to his brother’s child.  Although the trial court expressed an intention to clarify the original order, the appeals court found it had improperly made a substantive change.

The child’s father is deceased.  In 2016, the father’s brother filed suit to be named as the child’s primary conservator.  The uncle and the mother ultimately reached an agreement, which was incorporated by the court’s order.  The order gave primary possession to the uncle and periodic possession to the mother.  The uncle had the right to request the mother undergo drug testing once a month.  She was required to appear for drug testing at a designated location within 24 hours of the uncle sending notice.  The uncle was prohibited from sending notice Friday through Sunday at 9:00 a.m. If the mother failed to appear within 24 hours, the results would be deemed positive.  If the drug test results were positive or deemed positive, the mother’s periods of possession would be suspended until there was a further court order.

The mother moved to enforce the order a month after it was entered.  She alleged the uncle did not make the child available to her during her time.  She sought criminal and civil contempt, additional periods of possession, and attorney’s fees.  She also asked the court to clarify the original order if it found any part of it was insufficiently specific to be enforced through contempt.

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Stepparents often develop strong bonds with their stepchildren.  It is not unusual for a stepparent to take on a parental role and, in some cases, even become the primary caregiver for the child.  Although stepparents have not traditionally had strong rights, recent developments in Texas child custody law could open the door to more cases of stepparents seeking custody or visitation of their stepchildren.

In the past, Texas stepparents’ rights primarily derived from Texas Family Code § 102.003(11), which confers standing to file suit for custody or visitation on a person with whom the child and the child’s parent, guardian, or managing conservator lived for at least six months, but only if the child’s parent, guardian, or managing conservator is deceased when the petition is filed.  Additionally, the six-month period in which the child resided with the person must have ended within 90 days before the petition was filed.  Unfortunately, this section only applies if the parent to whom the stepparent was married dies.  It does not give the stepparent any rights while the parent is still living.

However, the Texas Supreme Court recently rendered a decision that could give a stepparent the right to seek custody or visitation even if the parent is living.  In the Interest of H.S., involving grandparents who had acted as caregivers for their grandchild, revolved around Texas Family Code § 102.003(9), a different section of the statute referenced above.  This section is not dependent upon the biological parent being deceased.  Instead, it confers standing in a lawsuit involving custody or visitation on someone “who has had actual care, control, and possession of the child for at least six months.”   As with the other section, the six-month period must end within 90 days before the filing.

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In Texas custody cases, the best interests of the child are the primary consideration, and the court uses broad discretion in determining them.  If the court finds it is in the child’s best interest to do so, it may limit a parent’s visitation with the child or increase a parent’s time with the child, but only if certain conditions are met.  A father recently challenged a court’s order that he would have to complete a Battering Intervention and Prevention Program before the possession schedule could change.

The parents lived together with the child until the mother moved out of the home.  The father filed suit, asking to be named joint-managing conservator and to have the exclusive right to designate the child’s primary residence.  A jury found the parents should be joint-managing conservators. Although the jury gave the father the exclusive right to designate residence, it placed a geographic restriction on that right.

When the court issued the order, it left the temporary orders for possession in place until the father finished a Battering Intervention and Prevention Program. The mother was granted the exclusive right to consent to invasive medical procedures, make decisions regarding the child’s education, and possess the child’s passport.  The father requested findings of fact and conclusions of law, then appealed.

Modification of a Texas custody order can generally only occur on agreement of the parties or when there is a material and substantial change in circumstances.  However, the change in circumstances alone is not sufficient to justify modification, the modification must also be in the child’s best interests.

In a recent case, a father challenged a trial court’s denial of his petition to modify custody.  He argued the trial court abused its discretion in finding there was no material or substantive change, allowing the mother to be joint-managing conservator and failing to render a possession order in his favor.

The original order was modified in 2015.  In 2016, the father petitioned to modify the order, asking to be named sole-managing conservator with the sole right to designate the child’s primary residence.  He alternatively requested the court name him joint-managing conservator with all the exclusive rights of a managing conservator or with the sole right to designate primary residence and expanded possession.  He asked the court to either deny the mother access to the child or to have her access supervised.